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Chapter 1
Introduction
1.1 Introduction
Election" means choosing of one right between two rights, when there is clear intention that
both the rights cannot be enjoyed but only one. Section 35 of the Transfer of the Property Act
defines the "Doctrine of Election. The "Doctrine of Election" is based on the rule in Cooper
v. Cooper(1874). If a person transfers some property which he has no right to transfer, and
the same transaction confers any benefit on the owner of the property, such owner must elect
either to confirm such transfer or reject it. If he rejects the transfer, he shall relinquish the
benefit conferred upon him and the property will revert back to himself or his representative
as if it had not been disposed of.
1.2 Research Methodology: In making this project report the doctrinal method of
research has been used.

1.3 Focus area: This project report focuses on Doctrine of Election.

1.4 Scope of the study: In this project report Doctrine of Election and its exceptions
under the Transfer of Property Act, 1882 has been explained.








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Chapter 2
Conceptual Analysis

2.1 Doctrine of Election
Election is the obligation imposed upon a party by courts of equity to choose between two
inconsistent or alternative rights or claims in case where there is clear intention that he
should not enjoy both. That he who accepts a benefit under a deed or will must adopt the
whole contents of the instrument.
Election means choosing between two alternative rights or inconsistent rights. If an
instrument confers two rights on a person in such a manner that one right is in lieu of the
other, that person can choose or elect only one of them. A person cannot take under and
against the same instrument.
The doctrine of election is based on the principle of equity that one cannot take what is
beneficial to him and disapprove that which is against him under the same instrument. One
cannot approbate and reprobate at the same time. In simple words, where a person takes
some benefit under a deed or instrument, he must also bear its burden.
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The doctrine of
election may be summarised as below:-
He who accepts a benefit under a deed or will, must adopt the whole contents of the
instrument, conforming to all its provisions and renouncing every right inconsistent with
it.
The rule given in section 35 can be analysed as follows:-
1. Where a person professes to transfer property which he has no right to transfer,
and
2. As a part of the same transaction confers any benefit on the owner of the
property,
3. Such owner must elect either to,-
(a) Confirm such transfer, or
(b) To dissent from it

1
Codrington v. Lindsay, (1873) 8 Ch 578: (1873) 42 LJ Ch 526
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4. If he dissents from it, he shall relinquish the benefit so conferred,
5. The benefit so relinquished shall revert to the transferor or his representative as
if it has not been disposed of
As per Section 35 of the Transfer of Property Act, 1882
Election when necessary- Where a person professes to transfer property which he has no
right to transfer, and as part of the same transaction which he has no right to transfer, and as
part of the same transaction confers any benefit on the owner of the property, such owner
must elect either to confirm such transfer or to dissent from it; and in the latter case he shall
revert to the transferor or his representative as if it had not been disposed of subject
nevertheless,
where the transfer is gratuitous, and the transferor has, before the election, died or
otherwise become incapable of making a fresh transfer,
and in all cases where the transfer is for consideration,
to the charge of making good to the disappointed transferee the amount or value of the
property attempted to be transferred to him.
The farm of Sultanpur is the property of C and worth Rs. 800. A by an instrument of gift
professes to transfer it to B, giving by the same instrument Rs1,000 to C. C elects to retain
the farm. He forfeits the gift of Rs.1,000.
In the same case, A dies before the election. His representative must out of the RS.1,000
pay Rs.800 to B.
The rule in the first paragraph of this section applies whether the transferor does ot does not
believe that which he professes to transfer to be his own.
A person taking no benefit directly under a transaction, but deriving a benefit under it
indirectly, need not elect.
A person who in his one capacity takes a benefit under the transaction may in another
dissent therefrom.
Exception to the last preceding four rules- Where a particular benefit is expressed to be
conferred on the owner of the property which the transferor professes to transfer, and such
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benefit is expressed to be in lieu of that property, if such owner claims the property, he must
relinquish the particular benefit, but he is not bound to relinquish any other benefit conferred
upon him by the same transaction.
Acceptance of the benefit by the person on whom it is conferred constitutes an election by
him to confirm the transfer, if he is aware of his duty to elect and of those circumstances
which would influence the judgment of a reasonable man in making an election, or if he
waives enquiry into the circumstances.
Such knowledge or waiver shall, in the absence of evidence to the absence of evidence to
the contrary, be presumed, if the person on whom the benefit has been conferred has enjoyed
it for two years without doing any act to express dissent.
Such knowledge or waiver may be inferred from any act of his which renders it
impossible to place the persons interested in the property professed to be transferred in the
same condition as if such act had not been done.
Illustration
A transfers to B an estate to which c is entitled, and as part of the same transaction
gives c a coal-mine. C takes possession of the mine and exhausts it. He has thereby
confirmed the transfer of the estate to B.
If he does not within one year after the date of the transfer signify to the transferor or
his representatives his intention to confirm or to dissent from the transfer, the transferor or
his representative may, upon the expiration of that period, require him to make his election:
and if he does not comply with such requisition within a reasonable time after he has
received it, he shall be deemed to have elected to confirm the transfer.
In case of disability, the election shall be postponed until the disability ceases, or until
the election is made by some competent authority




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2.2 Essentials of Section 35
(1) Transferor Professes to Transfer Property not his Own:
The section begins with the statement that where a person professes to transfer property
not his own. The word professes means purports, claims or acknowledges. Such a
person is not the owner of the property, therefore, he cannot transfer the property but he can
make arrangements for the transfer of the property which he does not own. If the property is
such that the transferor can transfer it, then it will pass to the transferee without any election
by the person who is given a benefit by the same instrument. The necessary condition for
the application of this doctrine is that there should be a claim under the instrument and also
a claim dehors the instrument.
It is not necessary that the transferor should mention it that he is transferring the property
which is not his own. The knowledge of the fact that the transferor has no authority to
transfer the property is immaterial for the applicability of doctrine of election. The second
paragraph of the section says that the rule will apply whether the transferor does or does not
believe that which he professes to transfer to be his own. In a case, A being entitled to one
share of a house, transferred the entire house to B and conferred a benefit on the owner of
the other share of the house. It was held that the transferor intended to give the whole
house; it is immaterial from what cause this intention proceeded, whether he forgot or
misunderstood his rights.
(2) Benefit Conferred on Owner of Property:
The transferor in the same transaction of transfer of property confers some benefit on the
owner of the property. The owner is given some benefit in compensation of his ownership.
The owner is one who is put to election. The occasion for election arises only where a
benefit is conferred directly on the owner of the property. Where benefit is given indirectly,
no duty to elect arises. For example, A professes to transfer the property of B to C and
gives Rs. 10,000 to the wife of B. this is not the case of direct benefit to B and thus, B has
no duty to elect.
It is also necessary that the benefit and burden both must come from the same transaction.
If they come from independent sources, the transferee need not elect. However, it is not
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necessary that both should be transferred from the same instrument of transfer. They must
be parts of the same transaction.
(3) Part of the Same Transaction:
It is necessary for making the rule of election to operate that both the transfer and benefit
from part of the same transaction. Benefit must be given in lieu of transfer. Benefit and
transfer must be inseparable and interdependent. Where they are independent of each other
they will not be considered as parts of the same transaction.
(4) Owner of Property must Elect:
The next requirement of his section is that the owner of the property must elect either to
confirm such transfer or to dissent from it. He may either accept the instrument with all its
contents or reject it altogether. Where he accepts the instrument he becomes entitled to the
benefit but he becomes bound to transfer the property. If he does not accept the instrument,
he retains the property and the benefit is not conferred on him. The person electing must be
the owner of the property. The word owner has been used in a very wide sense in this
section. It includes not only those who have vested interest but also those who have
contingent, reversionary and remote interest in the property.
The third paragraph of the section says that a person taking no benefit directly under a
transaction, but deriving a benefit under it indirectly, need not elect. This means that the
benefit must be given directly to the owner in lieu of transfer of this property. For example,
if the lands of Sultanpur are settled upon C for life and after his death upon D, his only
child. A Sultanpur are settled upon C for life and after his death upon D, his only child. A
bequeaths the land of Sultanpur to B and 1000 rupees to C. C dies intestate after the testator
without making any election. D takes out administration to C and as administrator elects on
behalf Cs estate to take under the Will. In that capacity he retains the legacy of Rs. 1000
and accounts to B for the rents of land of Sultanpur which accrued after the death of the
testator and before the death of C.
The fourth paragraph of the section says that a person who in his own capacity takes a
benefit under the transaction may in another capacity dissent therefrom. For example, if the
estate of Sultanpur is settled upon A for life and after his death upon B. A leaves the estate
to D and Rs.2000, to B and Rs.1000, to C, who is Bs only child. B dies in testate without
making any election shortly after the testator. C takes out administration to the estate B and
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as an administrator the testator. C takes out administration to the estate B and as an
administrator elects to keep the estate in opposition of the will and the relinquish the legacy
of elects to keep the estate in opposition of the yet claim under the will his legacy of
Rs.1000.
Where the right of election was not offered to the plaintiff transferor in the sale deed, it was
held that that in the absence of the right of election, the transferor could not claim that he
had elected for the alternative land in lieu of the disputed land.
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(5) Where Person Elects to Dissent:
Where the owner elects to dissent from the transfer, he shall relinquish the benefit so
transferred to him and such benefit shall revert back to the transferor or his representative
as if it had not been disposed of. When property so reverts back and
(i) The transfer is gratuitous and the transferor has before election died or otherwise
became incapable of making a fresh transfer, and
(ii) In all cases where the transfer is for consideration,
it shall be the duty if the transferor or this representatives or compensate the of the
disappointed transferee. The amount of compensation shall be the amount or value of
the property which was going to be transferred to him, if the option has been exercised
in favour of the transaction.

2.3 Exception
The section also contains an exception to the last preceding four rules. Where a particular
benefit is expressed to be conferred on the owner of the property which the transferor
professes to transfer and such benefit is expressed to be in lieu of that property, if such
owner claims the property, he must relinquish the particular benefit. However, he is not
bound to relinquish any other benefit conferred upon him by the same transaction.



2
Piara Singh v. charan singh, AIR 2009 (NOC) 3020 (P&H).
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2.4 Mode of Election
The section also deals with the mode of election. The owner has to choose one out of the
two inconsistent rights. This choice may be express words; it is an express election which is
final and conclusive. But where the owner simply accepts the benefit without expressing
anything in words, it is presumed that he has elected in favour of transaction provided
(i) he is aware of his duty to elect, and
(ii) of those circumstances which would influence the judgment of a reasonable
man in making an election, or
(iii) if he waves inquiry under the circumstances.
Where the owner of the property having full knowledge of the circumstances and being
aware of his duty to elect accepts the benefit, it means that he was chosen in favour of the
transaction. In two circumstances, there is presumption that he has knowingly accepted the
benefit:-
(1) Two years enjoyment:- Where the owner has enjoyed the benefit for two years
without doing any act to express dissent.
(2) Impossibility:- Where the owner of the property has done some act which renders
it impossible to place the parties (persons interested in the property) in the same condition
in which they would have been as if such act had not been done. For example, A transfers
to B an estate to which C is entitled, and as part of the same transaction gives C a coal
mine. C takes possession of the mine and exhausts it. He has thereby confirmed the transfer
of the estate to B.

2.5 Time Limit for Election
Time limit for the election has been prescribed by the ninth paragraph of the section. The
owner of the property has to signify his confirmation or dissent from the transfer within one
year after the date of transfer. This section says that if the owner of the property does not,
within one year after the date of transfer, signify to the transferor or his representatives his
intention to confirm or to dissent from the transfer, the transferor or his representatives may
require him to make his election after the expiration of that period. But if he does not
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comply with such requisition within a reasonable time after he has received it, he shall be
deemed to have elected to confirm the transfer.

2.6 Election by the person under disability
Where the person making election suffers from some disability, the tenth paragraph of the
section provides that in such a case, the election shall be postponed until the disability
ceases or until the election is made by some competent authority on his behalf.
Hindu Law
The principal underlying this section has always been applied to Hindus. In the case of
Rungama v. Atchama,
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the Privy Council referred to the rule that a party shall not at the
same time affirm and disaffirm it as far it is to his prejudice.
Muslim Law
In the case of Sadik Hussain v. Hashim Ali,
4
the Privy Council applied this doctrine to
Mohammedans also.
English Law
Under English Law, a transferee by electing against the transfer does not lose his benefit
but he becomes bound to make compensation out of it to the disappointed person.
Therefore, in English Law, doctrine of compensation applies in comparison to the Indian
doctrine of forfeiture. Under English Law, the person electing against the transfer gets what
remains after compensating the transferee disappointed. Secondly, no time is fixed by
English law for making an election, except when the time is limited by the instrument itself.
In Indian law, a period of one year is given for making an election.




3
(1858) 4 MOO Ind App 1: 7 Suth WR 57
4
(1916) 38 All 627: 43 IA 212: 36 IC 104
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Chapter 3
Conclusion

Election means choice. Doctrine of Election provides that where a property is transferred to
a person, then the transferee can make a choice between whether to accept the transfer or
reject it. If he is accepting the transfer, then the transferee shall, along with the benefits of
transfer, also accept the burden of transfer.
In nutshell, it means that a man taking a benefit under an instrument must also bear the
burden. In other words, a man cannot approbate and reprobate or below hot and cold.
For example, A transfers his house to B, by a gift and in the same gift deed asks B to transfer
his shop to C. B may elect to accept the transfer or reject the transfer. If B accepts the
transfer, he will get house but in that case he will also have to transfer the shop to C.
It may be noted that the question of election arises only when a transfer is made by the some
document. If the transferor makes a gift of property by one deed and asks the done, by
another deed, to part with his own property, there is no question of election. The owner of
property whose duty is to make election has freedom to elect either for the transfer or against
it. Where he elects against it i.e. dissents from the professed transfer, he forfeits his claim to
the benefit conferred on him. However, he can claim any other benefit which is given to
him independently of the transfer under the same instrument.

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